1. The appellant Setanbai was challaned and committed to Sessions for offences under Sections 302 and 318, Penal Code. She is a young Hindu widow and according to the prosecution she was pregnant and delivered a child who was found dead and buried in a Charwada, in village Laxamkhedi, on 12.3.1950. The Sessions Judge, Ujjain acquitted her of the charge under Section 302, Penal Code but convicted her under Section 318 and sentenced her to rigorous imprisonment for one year. She has now preferred this appeal against the judgment of the learned Sessions Judge.
2. The learned Sessions Judge has commented very severely on the latches and lapses of the Police in this case and has rightly acquitted the appellant of the charge of murder but I feel that the same evidence which has not been believed for an offence of murder should not have been believed for an offence under Section 318, Penal Code, as there is no eye witness who can depose that Setanbai herself came to the Charwada and secretly buried the body of the child there. No witness is forthcoming even to depose that Setanbai was seen near the Charwada. The fact that she absconded soon after the incident is not sufficient to base a conviction under Section 318 thereon. The learned Sessions Judge has relied upon circumstantial evidence in the case but that is not incompatible with the innocence of the appellant. It is just possible that Setanbai's father Hindusingh or a servant or some other friend of her might have taken the child & buried it in one corner of the Charwada of the village, I am sure that a conviction under Section 318, Penal Code cannot be based in this case on the mere circumstantial evidence referred to in the judgment of the learned Sessions Judge. I have gone through the statements of Bheru P.W. 9 & Lalu P.W. 10, relied upon by the learned Government Advocate in his arguments but there is nothing in those statements which may incline me to take a view that Setanbai was seen inside the Charwada secretly leaving or disposing of the dead body of the child. In my opinion there is surmise and conjecture against Setanbai but even gray; suspicion against an accused cannot be taker, to be substitute for proof. In this view of the matter I would allow the appeal set aside the conviction find sentence and order that she be acquitted. She is already on bail and she need riot surrender to her bail bonds which are hereby cancelled.